Bush Selects Two for Bench, Adding Fuel to Senate Fire

By NEIL A. LEWIS

Published: July 26, 2003

WASHINGTON, July 25—
President Bush escalated his fight with Senate Democrats over judicial nominations today by naming two new candidates for judgeships for the federal appeals court in Washington, widely regarded as second in importance only to the Supreme Court.

Mr. Bush nominated Brett M. Kavanaugh, an associate White House counsel, and Janice R. Brown, a California Supreme Court justice, to the 11th and 12th seats on the appeals court.

The court, the United States Court of Appeals for the District of Columbia Circuit, currently has nine active judges and Mr. Bush's choice for the 10th seat, Miguel Estrada, a Washington lawyer, has been blocked by Senate Democrats. During the eight years when President Bill Clinton was in office, Senate Republicans insisted the court's workload was so light there was no need for it to be filled to its 12-member capacity.

Mr. Kavanaugh, at 38, would be one of the youngest members of the federal appeals bench. He is assistant to the president and staff secretary, and has been responsible for marshaling the fleet of largely conservative judicial nominees the president has sent to the Senate, resulting in angry battles with Democrats. But he is probably better known as a senior assistant to Kenneth W. Starr, the independent counsel who investigated President and Mrs. Clinton for a variety of issues.

Mr. Kavanaugh was one of the principal authors of the ''Starr report'' that argued that President Clinton deserved to be impeached because of how he dealt with his dalliance with Monica Lewinsky, a one-time White House intern.

Justice Brown, who is African-American, wrote the majority opinion in 2000 interpreting California's referendum against affirmative action in a way that greatly pleased conservatives.

A seat on the District of Columbia Circuit would put her in the on-deck circle for a nomination to the Supreme Court. Three of the current justices were elevated from that court.

Justice Brown, 54, has been touted intensively in conservative legal circles as someone whose judicial philosophy would match that of Supreme Court Justices Antonin Scalia and Clarence Thomas, both of whom Mr. Bush said would be his models for any Supreme Court appointments

Ashley Snee, a White House spokesman, said that the law provided for 12 judges on that particular court and that Mr. Bush believed ''it's in the best interests of the American justice system and the American people that the courts be fully staffed.''

The nominations will, however, create an interesting situation for the Republican senators, notably Senator Charles E. Grassley of Iowa and Jeff Sessions of Alabama, who had vigorously argued there is no need for so many judges on the court. The White House announcement that the president was hoping to fill the court was made late in the day, and spokesmen for the two senators did not return telephone calls.

But opponents of Mr. Bush's approach to judicial nominations were quick to denounce the choices.

Senator Charles E. Schumer, a New York Democrat and member of the Judiciary Committee, said, ''These nominations are further proof, as if any were needed, that the administration has no interest in putting forth nominees who are moderate representatives of mainstream America.''

Mr. Schumer described the two nominees as evidence the administration was seeking ''the least mainstream and most ideological judges around.''

The nominations immediately raised the issue of whether the White House has come to believe that Mr. Estrada will not be confirmed and whether officials believe they need alternative candidates for the District of Columbia appeals court.

Ms. Snee said that was not the case and that Mr. Bush ''has said he will stand by Miguel Estrada until he is sworn in as a judge.''